CALCRIM No. 3475. Right to Eject Trespasser From Real Property

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3475.Right to Eject Trespasser From Real Property
The (owner/lawful occupant) of a (home/property) may request that a
trespasser leave the (home/property). If the trespasser does not leave
within a reasonable time and it would appear to a reasonable person
that the trespasser poses a threat to (the (home/property)/ [or] the
(owner/ [or] occupants), the (owner/lawful occupant) may use reasonable
force to make the trespasser leave.
Reasonable force means the amount of force that a reasonable person in
the same situation would believe is necessary to make the trespasser
leave.
[If the trespasser resists, the (owner/lawful occupant) may increase the
amount of force he or she uses in proportion to the force used by the
trespasser and the threat the trespasser poses to the property.]
When deciding whether the defendant used reasonable force, consider all
the circumstances as they were known to and appeared to the defendant
and consider what a reasonable person in a similar situation with similar
knowledge would have believed. If the defendant’s beliefs were
reasonable, the danger does not need to have actually existed.
The People have the burden of proving beyond a reasonable doubt that
the defendant used more force than was reasonable. If the People have
not met this burden, you must find the defendant not guilty of
<insert crime>.
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case.
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389-390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of a defense, which, if believed, would be
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sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt.
(People v. Salas (2006) 37 Cal.4th 967, 982-983 [38 Cal.Rptr.3d 624, 127 P.3d 40].)
Related Instructions
CALCRIM No. 3476, Right to Defend Real or Personal Property.
CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.
CALCRIM No. 506, Justifiable Homicide: Defending Against Harm to Person
Within Home or on Property.
AUTHORITY
• Instructional Requirements. See People v. Corlett (1944) 67 Cal.App.2d 33,
51-52 [153 P.2d 595]; People v. Teixeira (1899) 123 Cal. 297, 298-299 [55 P.
988]; Civ. Code, § 50.
• Burden of Proof. See Boyer v. Waples (1962) 206 Cal.App.2d 725, 727 [24
Cal.Rptr. 192] [civil action].
RELATED ISSUES
Negating Self-Defense Claim
The right to defend one’s home may negate a defendant’s claim of imperfect self-
defense, as held in People v. Watie (2002) 100 Cal.App.4th 866, 878 [124
Cal.Rptr.2d 258]:
[T]he right of a victim to defend himself and his property is a relevant
consideration in determining whether a defendant may prevail when he seeks to
negate malice aforethought by asserting the affirmative defense of imperfect
self-defense . . . [¶] . . . If [the victim] had a right to use force to defend
himself in his home, then defendant had no right of self-defense, imperfect, or
otherwise.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 88.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.11[1], 73.13[2] (Matthew Bender).
CALCRIM No. 3475 DEFENSES AND INSANITY
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